OPEN LETTER TO SCOTTISH GOVERNMENT REGARDING 3% PAY RISE FOR LEGAL AID LAWYERS

The announcement by the Scottish Government of a 3% increase in fees for legal aid work was rightly met with indignation and incredulity by GBA members this month. I am afraid that much the same reaction greeted your statement that the SNP Government “values the professionals who undertake legal aid work”. We simply do not see that assertion translating into action.

We are sure that you are not fully aware of this, but we can assure you that we are not simply “crying wolf” and that morale within members and practitioners could be described as being at its lowest in recent times. Members certainly do not feel valued. Not valued by the Government, not by other court users, not by the wider public. Over time we have no doubt that new entrants to the legal profession will migrate into private client and other properly remunerated areas of law. The attractions of legal aid work are diminishing all the time. Earnings have to be sufficient to sustain a viable business and to maintain an office. Why should a secretary accept a lower salary for typing a letter for a legal aid client than for a private one?

We and our staff certainly ought to be valued; our members and support staff provide a crucial public service to those who require it most within society. Often, we help the socially disadvantaged, the inarticulate and the vulnerable. Behind all of the official press releases what is clear and unequivocal is the funding of both criminal and civil legal assistance in Scotland has been in decline for years. Funding has remained stagnant for almost twenty years. There is simply no scope for movement in a fixed fee rate for inflation and the increase in living and business costs. The professional pressures and responsibilities on our members has increased whilst funding for cases has reduced.

We would submit that no other profession in Scotland has suffered such an erosion of public funding. And yet annually, without fail, the Scottish Legal Aid Board issues its tables of those lawyers paid most in legal aid. Whilst we have no basis for claiming that this is intended to fuel the image of the fat cat lawyer, funded at vast public expense (whilst representing undeserving rogues and scoundrels), we have little doubt that it has that effect. Whilst on that topic, it would be fair, we think, for the Board’s own chief executive to feature in the most appropriate table. We understand that he receives annual earnings of between £105,000 and £110,000 (leaving aside any pension entitlement) an amount that, for example, would place him earning above all but two solicitor advocates (see the table of top 20 highest paid legal aid solicitor advocates, 2017-2018). In addition, when summary criminal fixed fees were introduced, in 1999, the chief executive’s annual salary was a mere £70,000, since which time it has increased over 50%. Over the same period those fixed fees have barely altered.

We know that there are other professions where tables of public funding make interesting reading, by way of comparing those figures alongside those relating to solicitors and advocates. For example the list of dentists in Scotland receiving public funding shows that in 2015/16 the number receiving NHS gross earnings above £100,000 was 1575. SLAB’s 2017/2018 table of the 20 most highly paid advocates shows that the 20th best paid received £132,000. Yet in 2015/16 1037 NHS dentists in Scotland received more than that. It goes without saying, of course, that the 20 best paid advocates earn considerably more than does our average member.

The publication of legal aid receipts paid to legal firms does not take into consideration the running costs of those firms. These firms face the same costs and pressures as any other business in Scotland; rent, rates, staffing costs, national insurance payments.

All we are looking for is to be treated as fairly as the other publicly funded professions in Scotland. And we have no doubt that the resources are there to enable that to happen, by means of annual reviews rather than a modest one off increase every decade or so. The Board’s insistence on an “evidence” based process of review is misconceived; the evidence is there in the form of the government’s own inflation and cost of living figures and the sums it pays other professionals and civil servants. We seek equality of treatment. We appreciate that due to the lack of union clout we lack the bargaining power of, say, the teaching profession. Equally, it really ought not take the threat of strike action to gain attention and respect.

In the four years from 2014-2018 the number of police reports to the Procurator Fiscal’s office has declined by 116,000 cases. Nonetheless, the Scottish Government announced in August of this year an extra injection of funding to the COPFS. This was announced as crucial funding to help with the increase in complex cases, and in particular with a large increase in reporting of sexual offences. Consequently, our response to the concerns of the Crown as to the complexity of cases is that those cases are equally as complex to defence practitioners. Those practitioners do not have all the resources of the State. With the decline in cases marked for prosecution and marked percentage decline in Criminal Legal Aid payments, now is the time for the Government to re-evaluate the legal aid fee structure and reinvest the money that has been saved in to the Legal Aid system. The summary fixed fee introduced in 1999 would now be worth £823.75 if it was increased in accordance with inflation.

There needs to a fundamental change in approach to the funding of Legal Aid.